15 August 2008
document
In the following statement Botswana Federation of Trade Unions Secretary General GADZANI MHOTSHA explains the context of the formation of the new 'rival' federation.
The Botswana Federation of Trade Unions (BFTU) would like to comment on the issues surrounding the formation of a new trade union federation by the Botswana Public Employees Union (BOPEU) and National Amalgamated Local and Central Government and Parastatal Manual Workers Unions otherwise known Manual Workers Union (NALCGPMWU).
The statement is warranted by the level of deceit and manipulation, which has even reached the level of affiliates. If BFTU fails to respond at this time, some of the information may be taken as fact. We concede that it has taken long for BFTU to state its position on the matter, mainly due to the trivialising of the issues by some people, trade unions, and media writers. Hence, this statement confines itself only to the major issues raised in the media.
Membership statistics
Firstly we have come to realise that one of the key issues being used in the arguments surrounding the affability of the new federation and therefore the contemptibility of BFTU is the issue of numbers. For trade unions membership numbers are a very contestable matter that is usually at the core of differences. We would therefore gladly shed light on it. According to official statistics, such as the Labour Force survey 2005/6, Labour Statistics 2006 and data compiled by the Directorate of Public Service management (DPSM), the total government employment stands at 113,000 excluding BDF. This a conservative estimate based on 2007 figures with an annual growth rate of about 2%.
The figure includes Police and Prisons Services and members of management, all of whom are not eligible for trade union membership as per the Trade Unions and Employers Organisations Act (TUEOA) and Trade Disputes Act (TDA) and the new Public Service bill (which may come into effect anytime soon). The combined numbers of ineligible employees stands at about 15,000, which reduces the eligible to about 100,000 if we allow for the effect of growth mentioned above. According to DPSM, the estimated industrial employees of Central Government (CB) are 29,000, the constituency that is represented by the Manual Workers Union (MWU).
This number can be distributed between three groups: member of MWU, members of the Botswana Government Workers Union (BOGOWU) with a membership of 9, 676 and the unorganised (those who do not belong to any union). Since the unorganised have never been accurately measured and because there could be a small possibility of dual membership with BOGOWU, for the benefit of doubt, it could be safely assumed that the unorganised are part of MWU (though this is not strictly correct). This means that the maximum membership of MWU in CB is 19, 324.
The establishment of Local Government Service (LGS) is about 25,000. These include Permanent and Pensionable employees (P&P), members of Management and Industrial Employees. The break down is as follows: the Botswana Land Boards & Local Authorities Workers Union (BLLAWU) has paid up memberships of 10,100 and its membership still being processed is approximately 3,000, mostly industrial class employees defecting from MWU. BOGOWU membership in LGS is 2,500. Therefore the total membership of BLLAWU and BOGOWU in LGS is 15, 600, which leaves a remainder of 9,900, which includes members of management, members of MWU and the unorganised. For argument's sake, we could ascribe about 9,000 to MWU, which is quite a liberal estimate.
The conclusion from this statistical exercise is that in both Local Government and Central Government services the membership of MWU cannot exceed 28, 324, even with liberal estimation. The correct figure is actually less. The Botswana Public Employees Union (BOPEU, formerly BCSA) has a declared membership of just over 16,000.
This means the combined BOPEU and MWU membership is a maximum possible 44,324, which is the closest estimated membership for the new Federation. The figures being bandied about of a combined membership of about 80, 000 are just an attempt to manipulate, deceive and mislead gullible people, especially uninformed members of other public service trade unions.
Comparatively the paid-up membership breakdown of BFTU affiliates in the public service is as follows:
* Botswana Teachers Union 11,000
* Botswana Secondary School Teachers Union 9,000
* Botswana Land Board & Local Authorities 10,100
* Botswana Government Workers Union 9,700
* Trainers & Allied Workers Union 700
TOTAL 40,500
This is slightly less than the combined estimated membership of the new federation. But then some people making comparisons confuse this with the combined BFTU membership. This is just the public sector wing of BFTU, excluding the private sector Unions which are not part of our discussion here. We challenge anyone with better statistics with official verifiable sources, to make a substantial correction to these figures.
Now if we apply these figures to the 'Recognition argument, the new federation is 44% while BFTU affiliates are 41% of the public service. The difference is the unorganised P&P groups in both Central and Local Government some of whom belong to the four existing staff associations which are yet to register as trade unions (about 15% of the total public service establishment - the actual figure is likely to be slightly higher). The required threshold is 33%, which both groups qualify for. Already the BFTU Public Service Unions have made a formal proposal two BFTU to act jointly for the purpose of recognition and bargaining on the public service according to TDA and TUEOA. Therefore the whole story of Unions defecting from BFTU because they cannot qualify to bargain unless they join the new federation does not hold water.
Bargaining Councils in the public service
It should be appreciated that the authority regulating employees /employers relations in Botswana rests on two main pieces of legislation: the Trade Disputes Acts (TDA) and Trade Unions & Employers' Organizations Act (TUEOA) who both cite government as an employer. The establishment of Bargaining Councils is provided under Section 36 of the TDA. The Industrial Councils (ICs) for the purposes of bargaining are not the prerogative of the employer but are established by the Commissioner after application by a union and the employers' organisation. It is therefore imperative that the new Public Service Act should be aligned with the provisions in the TDA and TUEOA to be valid. Otherwise it will be contravening the legislation that establishes and regulates employees/employers relations which draws its authority from the ratified ILO Conventions 87, 98, 144 and 151 which brought unionisation to the Botswana public service. It should be noted that the dealings between a trade union and employer are based on the recognition of the former by the latter. The relations between the two cannot be founded on subjective structure such as bargaining chambers created with the authority of the employer. In other words, the employer cannot create structures that debar a union from bargaining with the employer. Such restrictive practice or legislation is in contravention of the ILO Convention 87 on Freedom of association.
A union that has been granted recognition by the employer is granted bargaining rights through that recognition. When a union applies for recognition it is automatically applying for bargaining rights and once granted recognition it also means that access to bargain chambers has been given. Therefore it would be unprocedural to subject a recognised union to a further test of recognition based on constitution of a bargaining chamber. A trade union does not apply to a bargaining chamber for recognition, but to the employer, whereas a bargaining chamber is a just a creation of the two parties.
Therefore the creation of a bargaining chamber can never precede recognition since it serves the purpose of the recognition and not the other way around.
Another issue which has not been resolved is whether the Public service should be treated as a workplace or an industry. It is a debatable issue with equally strong arguments on both sides. On one hand there is only one employer, which means that the public service cannot be classified as an industry. On the other hand it is a very diverse and large employment sector with multiple trades and occupations which would make a single system approach untenable for effective representation unless trade union monopoly is imposed on the employees.
l Procedure for registration of a Trade Union Federation
This matter is dealt with under Section 45 of the TUEOA and regulations of TUEOA Section 13. Unless otherwise proven by the Registrar of Trade Unions, there remains a doubt that this Section was followed in the federation/amalgamation of BOPEU and MWU. Both organisations' Congresses in Maun in December 2007 did not hold a secret ballot supervised by the Registrar as required by the Act. This contravention of the legislation therefore nullifies the registration of such a federation. The office of the Registrar has been strict in applying this Section in previous amalgamations and it would therefore be quite a startling discrimination if a waiver is given in the case of the new federation (the Act does not provide for such a waiver). If the Registrar cannot justify why the stipulated procedure was not followed, then it follows that the Registration of the new federation is unlawful.
*The issue of existing recognition letters and collective bargaining agreements
Another related issue is that of the Recognition letters recently issued to four of the seven public service unions. What do these letters of recognition confer upon the unions which hold them? Who issued those letters and for what purpose? Based on the TUEOA and TDA we will assume that they were issued by the employer, for the purpose of collective bargaining according to Sections 48 of TUEOA and 32 of TDA. The reality is that they were issued by different authorities giving different reasons to those who received them and those who did not. In some cases recognition letters gave the right to bargain beyond the constitutional mandate.
In the case of the Manual Workers Union (MWU) the employer maintained its recognition without explicitly extending its mandate though it supposedly had the requisite numbers, but the same employer also maintains that a public service trade union cannot represent a specific constituency. Not only is this contradictory, but is also a denial of the right of employees to associate as of choice. Effectively it means the employer is the one who decides the form of association that employees can use to bargain, which of course is unlawful.
The issue of specialised bargaining is made even more complex by the existence of other staff associations which may decide in the future to register as unions and request for recognition. These are the associations for tribal administration staff (BOTASA), primary teachers (BOPRITA), nurses (NAB) and administrators (BOPAMOA). Obviously with the simplistic approach being used, the government and some unions will dismiss such new unions as non-entities, but the matter is more complex than that because of the question of the constituency that the union represents. If it goes to court the government will definitely lose such cases because there are already similar cases judged in favour of similar unions.
As stated elsewhere this problem is caused by the reversing of the order of the process of recognition and bargaining. The recognition letters were issued based on the four existing differentiated Public service laws. Now the challenge is that those letters of recognition cannot be revoked unless the employer uses Section 35 of the TDA, which cannot be applied to such a situation because it would amount to the employer moving the goal posts before the game begins in order to determine the players who should kick the ball.
By merging Acts the government has transferred the powers of the previous employing authorities to the new centralised one (DPSM). However, those public service unions cannot be said to be recognised only to bargain at lower chambers as envisaged by the draft constitution of the national bargaining council, because the law does not provide for junior and senior status of recognition. It is either they are recognised by the employer or not. Once recognised the employer cannot turn around and prescribe lower bargaining rights.
If this were to happen it could only be allowed by the unions themselves, but the law entitles them to bargain on behalf their constituency in all bargaining structures. This right is given by the TDA and TUEOA - it is not for the employer and unions to pick and choose the issues for negotiation and the levels of negotiation, unless the unions willingly subject themselves to such an unlawful arrangement. Bargaining and negotiation is absolute and cannot be made partial subjectively by either a constitution of a bargaining council or even the new Public service Act.
As I have stated above, the new Public Service Act cannot contradict the existing TUEOA and TDA since these have a national jurisdiction. These laws started the unionisation process for the public service in the first place, which means the new amendment is derived from them. The irony of the issue of specific constituency is that the Manual Workers Union (MWU), uses this concept in the parastatals to gain recognition for industrial employees in state parastatals.
At BTC for instance, MWU is much smaller than BOTEU but it is recognised on the basis of the specific group of employees it represents. The same situation pertains at UB, where MWU has numbers smaller than NASU and UBASSU but again is recognised on the basis of its constituency. Actually MWU went to court to gain those recognitions. For some reason someone seems to think that the same principle cannot be applied to other unions in the public service.
Still on this issue one would like to touch on the existing collective bargaining agreement between government and the Manual Workers Union (MWU). It is not based on the Public service Act but on conditions applying to the private sector, including Employment Act, TDA and TUEOA. However both parties have decided to transfer the CBA to the new set-up without review. Another contradiction emerges: the agreement is automatically applied to the new act while the definition of public officers excludes industrial employees. Without reference to the new federation, the MWU is now given the authority to bargain for permanent employees without their knowledge purely on the basis that it is the dominant force in terms of numbers. It is another matter for the MWU to exercise this right or to join with (BOPEU) to exercise this.
The fact is that they have the right to bargain for their more senior employees though their conditions are far apart. Actually what this means is that it almost compels all other public service unions to be friendly to MWU or suffer in the wilderness. This also means that the MWU has the power to stall any issues that government may decide on behalf of its permanent employees. If this happens what would be the value of unionising if it gives less power to employees than when they were in staff associations with the employer deciding conditions on their behalf?
I wonder if BOPEU members actually realise that this arrangement ties them to the MWU permanently unless they grow much more than their current membership - they can only meet recognition threshold if they act jointly with MWU or another union. Again they can only elect leaders in their Congresses who prefer to work with MWU or another union. The problem is that those who created these conditions had in mind the current personalities in the leadership of these unions and the concept of the planned federation.
What they failed to apply their minds to is that in future the members and leaders of these two unions may decide to go separate ways and they should not be bound by bargaining arrangements from exercising the freedom of association. What would happen then to the public service? Are we going to amend the Act every time a group of workers form a new union or break up existing formations? Certainly this is not the spirit of the law.It also an anathema for an employer to encourage trade union monopoly and prefer to be held at ransom by a group of unskilled employees no matter how large their numbers are. Not only is pluralism good for the employer, but trade union monopoly is against ILO Convention 87.
l Whether a Federation can bargain on behalf of employees
This is another issue raised several times in the media by those who argue that BFTU cannot bargain for any of the existing Public Service Unions. The purpose of forming the new federation, we understand, is to bargain with the employer. If one recalls the argument I raised earlier, it then emerges that the federation was formed specifically to operate under the new conditions that are being forged by the employer. What we do not know is whether BOPEU and MWU members were aware that the TUEOA already provides for two or more unions to act jointly for purposes of recognition and bargaining without going through the hassle of registering another legal entity.
This raises the question of the real motive for the formation of the new federation, but that is another topic for another day. Were the members informed about the pros and cons in each approach and did they deliberately prefer a federation over simple joint bargaining which gives the same power and more flexibility? Do the members know that with a federation the law requires that certain decisions can only be made through a congress of the general membership of the unions that make up such federation?
If the new federation can bargain, why would that be impossible for BFTU to do? Is it about BFTU not having the skills and ability to bargain? Is it about the numbers? Does the law discriminate the type of federation that could be allowed to bargain and the type that is not? Recently in the press, some leaders of the new federation made the statement about BFTU not being able to bargain but they fail to explain what they mean. Let us for argument sake take the latter reason to be their point of argument. If the law were to make a distinction between a sectoral federation and a national federation, it would then require that the law should specify the procedure so that one federation does not assume the role of the other.
The truth of the matter is that the law does not mention bargaining by any federation, whether national or sectoral. This is because the expectation is that individual unions, at the level of workplace or industry (unions acting jointly, which does does not mean a federation) do the bargaining while the purpose of federating is for other common issues other than bargaining. Even if the interpretation could be that a federation could indeed bargain, why would that apply only to a specific type of federation?
l Is the new federation a national or sectoral federation?
This is a pertinent issue. The only reason why the new federation attracts so much controversy is that it promises to replace BFTU as the national centre or rallying point for labour, although it appears the leaders of BOPEU and MWU do not have a common view on the matter. The latter are adamant that this is the intention while the former are cagey about it. Which brings us to the question: did they tell their members about their intentions? Or did they simply tell their members about bargaining in the public service as the purpose for forming the new federation? In all honesty there is nothing wrong with two unions forming a federation.
The law provides for that and they are acting within their rights in doing so. The problem is when they registered a sectoral federation with the intention to use it for other purposes beyond the objects contained in its constitution. Let us try to analyse that a bit further. A federation formed purely for the purpose of sectoral bargaining cannot seek recognition into tripartite bodies dealing with national social and economic policy matters. In Botswana there are three such bodies: NEMIC, Labour Advisory Board and Minimum Wages Board. Already the government has accorded the unions which make up the new federation membership into these bodies with equal standing as BFTU and BOCCIM. Now this is out of order. If the government continues to do so it is acting contrary to its international obligations and may have to be called to order at that level. While other government ministries may not be aware of this, the Department of Labour knows that it is a serious violation which may embarrass government elsewhere.
Again it is in order if the new federation explicitly has objects which classify it as a national centre. But it should not impersonate a sectoral federation and vice-versa or act in a dual imprecise manner by competing with BFTU implicitly while BFTU cannot act in its domain.
If this new federation acts within its mandate without ulterior motives of impersonating a national centre, then those affiliates of BFTU in the public service should not have fear of belonging to both. The only reason why there is so much noise around this new federation is because some of its leaders harbour the idea of destroying BFTU to settle old scores. The way its leaders recruit BFTU affiliates to their side is based on manipulation, deceit and mutual exclusivity.
l What are the implications of the new federation for union members?
The architects of the new federation have a duty to explain to their members the implications of the formation of the new federation. As long as the two federations remain parallel, they are dividing workers and it is the workers and not the Union leaders who will suffer the consequences. The members of BOPEU and MWU are entitled to know the bodies, channels and opportunities they are made to forgo as a result.
For instance, training through ILO systems, relationship with global unions, including ITUC, monitoring of violation of labour rights into the ILO system. BFTU is still the national centre and many donors and partnerships still work through BFTU and this is going to continue for a very long time. A recent example is the ILSSA project which was run by the ILO/Ministry of Labour through BFTU. In the near future BFTU will host an international workshop on Trade Policy. While we are aware of the relationship of some public service unions with the global union for public services (PSI), this is limited to the work of this specific sector. There is no way that the new federation could be treated as more or equally representative of Botswana's labour movement when it is made of two unions of a single employer. This would create a major problem since it also disqualifies BOCCIM as a social partner because as an employers' federation it employs BFTU members. What would have been wrong with BOPEU joining BFTU and then acting jointly with other public service unions for recognition and bargaining? Now because of the preferences of union leaders thousands of workers are cut-off from processes and organisations they ought to be part of.
l Conclusion
The thrust of this statement is the exposition of truth and facts. We believe that trade unions have an obligation to let members know the truth, so that they can make decisions based on the truth. There is nothing wrong with the leaders of BOPEU and MWU forming a federation if they tell their members the truth, rather than manipulating it to serve the purpose of succeeding. Through the decisions and actions of certain individuals with whatever interests, the government has been made vulnerable to litigation and continuous conflict at the beginning of an otherwise good era in the industrial relations system. One of the reasons why this is so is because the government department charged with custodianship of the labour laws and ratifications and reporting on ILO Conventions was not directly involved in the process of effecting public service unionisation.
Despite the national significance of the process, both BFTU and BOCCIM were not involved by the other social partner. BFTU has already voiced its opinion on this through the Minister of Labour and Home Affairs and the Commissioner of Labour. It is also not clear whether the Attorney General's Chambers played their full role alongside the legal consultant engaged by DPSM/ Office of the President.
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